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An In-depth Look at Article 12 of the UN Convention on the Rights of the Child

Last week, we looked at how Article 9 of the UN Convention on the Rights of the Child gives the government authority to intervene in the decisions of parents simply by appealing to the child’s “best interests.” This week, we continue our in-depth analysis of the CRC by examining Article 12, which says: “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”

Which Children?

At the outset, three key observations are readily apparent. First, this right protects a child who is “capable of forming his or her own view,” which must be given “due weight,” in accordance with his or her age and maturity. Second, our government (”States Parties”) would be responsible for ensuring that this right is respected, both in public places and in private realms, such as the home. Finally, this responsibility extends to “all matters affecting the child.” These three tenets place incredible discretion in the hands of the government to challenge - and even reverse - the decisions of parents.

Although the Convention claims to protect children who are “capable of forming their own views,” this phrase is incredibly ambiguous. Indeed, the United Nations Committee on the Rights of the Child recognized this ambiguity in 2006, when it asked for input from all UN member-states on the meaning of Article 12. A report by India’s Committee for Legal Aid to Poor suggested that the right to be heard extends to “the decision of the families and should not be restricted to Judicial and administrative proceedings only.” That same year, the Canadian Child Care Federation asserted that “Children need to be ‘heard’ during all stages of development, beginning in infanthood.” (emphasis in original)

“Suing” Your Parents?

In addition, Article 12 applies not only to legal and judicial proceedings involving a child, but also to decisions made within the privacy of a family. According to Dr. Geraldine van Bueren, Professor of International Law at the University of London and a lead-drafter of the CRC, “the duty on the State Party is to assure the right to freedom of expression in ‘all matters affecting the child’ and as a result places duties on the state in relation to matters traditionally relegated to the private sphere.” By referencing “all matters affecting the child,” van Bueren writes, “there is no longer a traditional area of exclusive parental or family decision-making.”

Although the CRC has not been ratified by the United States, our own courts have nevertheless begun to allow children to actively assert their “right to be heard.” The Florida State Supreme Court ruled in 2000 that a fifteen-year-old boy in foster care was entitled to a judicial hearing and a lawyer to contest his placement in a mental health institution. It makes sense to grant such a right to a fifteen-year-old who does not have parents and is in the custody of the state, but in 2003, the Florida court extended its ruling to say that children in foster care were entitled to legal hearings and appointment of a lawyer, in order to give the child a “meaningful opportunity to be heard.” Although the court did not say “all children,” it seems reasonable to infer that this legal standard could be applied to children well under fifteen years old.

The result of this and similar rulings has been children - some far younger than fifteen - who are successfully suing their own parents under the direction of a relative or government worker. As recently as June 2007, a nine-year-old boy in Minnesota sued both his parents through a government-appointed guardian ad litem and won $100,000 from their insurance company for injuries due to the “faulty installation” of his car seat. Children and even infants in states like Kansas, Florida, and New Hampshire have also successfully sued their parents for being involved in automobile accidents, being hit by a car in a parking lot, and even for prenatal injuries suffered when the mother was hit by an oncoming vehicle because she did not use a crosswalk.

Children in Harm’s Way

These cases illustrate the danger that “right to be heard” poses to children, especially to infants and young children, who are often completely unaware of what they are doing when they “sue” a parent. According to Dr. Martin Guggenheim, Professor of Law at New York University and President of the National Coalition for Child Protection Reform (NCCPR), the modern “children’s rights movement” encourages litigation to enforce children’s rights, but fails to recognize that such litigation is “used more often than not as an opportunity to ‘take it to the judge,’” rather than to protect children. Thus, “more children are enmeshed in legal proceedings than would have been imaginable a generation ago,” as adults seek to invoke their children’s rights to “gain the upper hand” against an ex-wife, corporation, or auto insurance company.

The danger of Article 12 is that it grants the government broad, discretionary legal authority, to protect the child’s nebulous “right to be heard” at all times when the child’s interests are involved. Thankfully, our courts have not yet adopted this philosophy in “all matters affecting the child,” but if the CRC is ratified or imposed on the United States through customary international law, that will change.

America’s experience has opened parents up to extensive litigation, while often using the child’s “interests” as a way to claim a sort of “moral high ground” in disputes that are really between adults. When the bonds between children and their families are tried in the fires of litigation, they are often scorched in the process. Whenever we empower the government to be the arbiter, we are risking the welfare of our children and families.

Please forward this message onto your friends and urge them to sign the Petition to Protect parental rights at http://www.parentalrights.org/petition.

Sources

UN Convention on the Rights of the Child
http://www.unhchr.ch/html/menu3/b/k2crc.htm

Florida Supreme Court gives “silenced” children the right to be heard
http://www.floridasupremecourt.org/decisions/pre2004/bin/sc00-2044.pdf

Committee for Legal Aid to Poor, “The Right of the Child to be Heard” (India)
http://www.crin.org/docs/GDD_2006_CLAP.doc

Canadian Child Care Federation, “To Speak, Participate and Decide” (Canada)
http://www.cccf-fcsge.ca/pdf/Right_to_be_Heard.pdf

Geraldine van Bueren, The International Law of Children’s Rights (1995): 137.

Harrison v. Harrison, 733 N.W.2d 451 (Minn. S.C. 2007); for additional cases involving children suing parents, see Nocktonick v. Nocktonick, 227 Kan. 758 (Kan. S.C. 1980) and

Bonte for Bonte v. Bonte, 616 A.2d 464 (New Hamp. S.C. 1992).

Martin Guggenheim, What’s Wrong with Children’s Rights (2005): 245.